13 Nov 2009

Coming to action, the Food Safety and Standards Authority of India has released the Concept Note on the Guidelines it seeks to notify relating to 'Code of Self Regulation in Food Advertisement'. What is intruiguing to note is that it is known that the Authority has already began to investigate and examine various food products related advertisements and their validity under the Food Safety and Standards Act of 2006.

While the Act of 2006 defines " ‘advertising’ as ‘any audio or visual publicity, representation or pronouncement made by means of any light, sound, smoke, gas, print, electronic media, internet or website and includes through any notice, circular, label, wrapper, invoice or other documents", Section 24 of the Act places restrictions of advertisement and prohibits unfair trade

practices and Section 52 and 53 of the Act prescribe the punishment for selling misbranded food and also for misleading advertisements. In this legal setting, acknowledging that "Commercial Advertisement comes within the domain of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution of India. The Supreme Court of India has held that commercial advertisement is a fundamental right available to every citizen under Article 19 (1) (a) of the Constitution of India subject to the requirements of Article 19 (2) of the Constitution" and also that there is no legal framework regulating advertising standards in India, the Food Authority 'Code for Self-Regulation in Advertising' drafted and implemented by the 'Advertising Standards Council of India' (a voluntary self-regulatory council, registered as a not-for-profit Company under section 25 of the Companies Act).

Further taking note of the international best practices, the Food Authority adopted the following approach for itself;

I. A perusal of the practices followed by other countries would show that the cornerstone for each of them is self-regulation guided by some handholding in terms of prescription of basic criterion by the governments/legislatures/consultative bodies respectively.

II. This is especially true for food products, owing to the vast nature, array of products and the distinct requirements for each of such products, requiring use of large number of ingredients, additives and chemicals, effect of which are varied, far reaching and dependent on number of criteria. Thus framing of specific guidelines under the Rules/Regulations would neither be practicable or efficacious for achievement of the end purpose of the legislation.

III. It is imperative that the Authority enacts broad-based guidelines on the requirements of Section 24, taking into consideration Sections 52 & 53.

IV. The FSSAI could adopt the suggested framework as a guideline and allow an independent body like ASCI to formulate the industry Code as applicable to food and beverage communications/advertisements and treat the same as benchmark for compliance with the provisions of the Act.

V. Such an approach would also allow the industry and the regulations to adapt themselves to ever-changing standards and operational/business processes.

In this background, the Authority has proposed the following guidelines to 'promote high standards in food and beverage communications and advertising';

i. Advertising and communication for food and beverages should not be misleading or deceptive. This means that claims about particular ingredients in a food and beverage product or the underlying health benefits thereto should have a sound, authentic scientific basis and supported by evidence whenever required.

ii. Advertising and/or marketing communications for food and/or food & beverage products that include what an average consumer, acting reasonably, might interpret as health or nutrition claims shall be supportable by appropriate scientific evidence and should meet the requirements of the basic Food standards laid down under the Food Safety Standards Act , 2006 and rules, wherever applicable.

iii. Advertisements should not disparage good dietary practice or the selection of options, such as fresh fruit and vegetables that accepted dietary opinion recommends should form part of the average diet.

iv. Advertisements should not encourage excessive consumption or inappropriately large portions of any particular food. They should not undermine the importance of healthy lifestyles. Advertisements should rather try to promote moderation in consumption and the need to consume in suggested portion sizes.

v. Care should be taken to ensure advertisements do not mislead as to the nutritive value of any food. Foods high in sugar, fat, TFA and/or salt should not be portrayed in any way that suggests they are beneficial to health.

vi. The nature of the audience should be taken into account particularly when selling products in rural areas, to urban poor or to children. Advertisements and communications should not exploit their lack of experience or knowledge and always provide truthful information. In such cases, nutritional or health-related comparisons should be based on an objectively supportable and clearly understandable basis.

vii. Communications for Food and/or Beverage Products including claims relating to material characteristics such as taste, size, suggested portions of use, content, nutrition and health benefits shall be specific to the promoted product/s and accurate in all such representation.

viii. Advertisements should not mislead consumers especially children to believe that consumption of product advertised will result directly in personal changes in intelligence, physical ability or exceptional recognition unless supported with adequate scientific evidence.

ix. Advertisements containing nutrient, nutrition or health claims and advertisements directed at children should observe a high standard of social responsibility.

x. Communications for Food and/or Beverage Products not intended or suitable as substitutes for meals shall not portray them as such.

xi. Claims in an advertisement should not be inconsistent with information on the label or packaging of the food.

xii. Advertisements for food and beverages should not claim or imply endorsement by any government agency, professional body, independent agency or individual in particular profession in India unless there is prior consent, the claim is current and the endorsement verifiable and the agency or body named.

xiii. Celebrities or prominent people who promote food should recognize their responsibility towards society and not promote food in such a way so as to undermine a healthy diet.

xiv. Advertisements should not undermine the role of parental care and guidance in ensuring proper food choices are made by Children.

xv. Advertisers and communicators must recognize their social and professional responsibility towards promoting a healthy lifestyle and strive to achieve high standards of public health. All advertisements and communications should be thus truthful, legal, decent and honest reflecting their social and professional responsibility.

The Motivation !!!

Rule 46 of the 'Standards of Professional Conduct and Etiquette' prescribed by the Bar Council of India requires that "Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society."

Sharing this "vision for a better-world" and serving to the Humanity, this blog is a small attempt by a group of like-minded lawyers to spread the word on "LAW" across the society.

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